74 Pa. 421 | Pa. | 1874
The opinion of the court was delivered, April 2d 1874, by
Williams, J. — It is clear from ad the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff’s leg, would not have happened if she had not been permitted to ride on the front platform of the defendant’s car. If the rules of the company had not forbidden it, there can be no doubt that it was gross negligence for the driver'to allow children as young as the plaintiff and her companion, to get on the front platform and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go inside the car, or to stop and put them off; and if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff’s negligence contributed to produce it. But negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger "and to use the proper means to guard against it. In this case it is conceded that' negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed. What matters it, then — even if the evidence would warrant the inference — that the plaintiff’s companion, who was a child only eleven years old, may not have done all she could to prevent the plaintiff from jumping off the platform while the car was in motion? or that, when she saw her in the act of jumping, she may have been guilty of indiscretion or carelessness in pushing or swinging her from the car, and that her negligence in this respect may have contributed to the accident ? The plaintiff was no more
There was no error in allowing the printed rules of the company given in evidence by the plaintiff to be sent out with the jury. 'It was clearly a matter within the discretion of the court.
Judgment affirmed.